2008 BCSC 573 U.S.A. v. Bezeredi

Before: The Honourable Mr. Justice Williamson

Reasons for Judgment

Counsel for the Applicant	Matthew Williams
Counsel for the Respondent	Robert S. Anderson
Date and Place of Hearing:	April 29 and 30, 2008
	Vancouver, B.C.

[1] The United States of America is seeking the extradition of John Raymond Bezeredi (“Bezeredi”) for prosecution in the United States for an offence that corresponds to the Canadian offence of fraud.

[2] In this application, Bezeredi seeks disclosure of all documents, information or materials in the possession of the Federal Bureau of Investigation in the United States, the Royal Canadian Mounted Police, the Vancouver Police Department, the Business Practices and Consumer Protection Authority of British Columbia, the Competition Bureau of Canada and the Federal Trade Commission of the United States. In the application, Bezeredi describes these as documents “that are the basis of this extradition proceeding”.

[3] The Record of the Case for the prosecution was certified by appropriate United States authorities on October 13, 2005. The authority to proceed issued pursuant to s. 15 of the Extradition Act, S.C. 1999, c.18 is dated October 21, 2005. There are two supplemental certified Records of the Case for the prosecution, dated May 22, 2006 and May 29, 2006.

[4] At the heart of this application is the submission by Bezeredi that information concerning the underlying allegation was obtained illegally in Canada. The claim of the United States is that Bezeredi was involved in a fraudulent telemarketing scheme in which victims in the United States were defrauded of large sums of money. Bezeredi says that as a result of an inspection order obtain pursuant to s. 151 of the Business Practices and Consumer Protection Act, S.B.C. 2004, c.2, a number of named individuals were permitted to search and seize records and assets belonging to Bezeredi or companies with which he is associated at their office locations and at his home. The search made pursuant to this order was conducted on October 19, 2005. Bezeredi was arrested on the same day.

[5] Bezeredi says that the information obtained in this search was obtained illegally because the Business Practices and Consumer Protection Act inspection order had the effect of permitting the named RCMP officers to seize information which, as they were involved in a criminal investigation, required a warrant to be issued pursuant to the Criminal Code. Thus, he submits, safeguards that should have been available to him were not.

[6] Bezeredi points out that information obtained pursuant to this inspection order was utilized by the Attorney General for Canada at the bail hearing for him on October 24 and 26, 2005. He was unable to perfect that bail. Subsequently, on November 16, 2005, the bail was varied and Bezeredi was able to perfect the bail. He has been out of custody since.

[7] I start by saying that an extradition judge has a limited role. That role is to determine if the person sought is properly identified, and second, if there is prima facie evidence of criminal conduct that corresponds to the Canadian offence named in the authority to proceed. I note that in an extradition proceeding, the person sought is not entitled to the level of disclosure required in criminal proceedings as articulated in R. v. Stinchcombe, [1995] 1 S.C.R. 754.

[8] Bezeredi says disclosure is required because Canadian and American authorities worked closely together in a joint investigation of Bezeredi’s activities. Counsel for Bezeredi submits that without disclosure he is unable to ascertain if information obtained improperly in Canada forms a basis or one of the bases of the American prosecutors’ case. Second, as I have noted, he emphasizes that information obtained pursuant to the inspection order was used immediately for a criminal proceeding, which is to say, the bail hearing for Bezeredi.

[9] Next, relying on the two judgments in United States of America v. Licht, [2002] B.C.J. No. 477, and [2002] B.C.S.C. 1151, Bezeredi submits that the improper obtaining of evidence pursuant to the inspection order was so egregious a circumstance that it cries out for an order for disclosure or even possibly a stay of proceedings.

[10] I am not persuaded. First, I note that the Attorney General for Canada, on behalf of the United States, is not relying upon any information gleaned pursuant to the inspection order. The authorities repeatedly say, in these circumstances, that the question is whether the impugned information is relevant to the function of an extradition judge. Our Court of Appeal in United States of America v. Gillingham, 2004 BCCA 226, 184 C.C.C. (3d) 97, has adopted, as they were bound to do, aspects of the Supreme Court of Canada judgment in United States of America v. Kwok, [2001] 1 S.C.R. 532, quoting, among other things, Arbour J. at para. 57 writing that an extradition judge may exercise powers which include “remedies for the Charter breaches that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process”.

[11] The issue then, is whether the alleged wrongdoings in Canada “pertain directly to the circumscribed issues relevant” to the committal stage of this process.

[12] Where, as here, the requesting state chooses not to rely upon impugned information obtained in Canada to establish a prima facie case, it is exercising appropriate control of the evidence: see United States of America v. Graham, 2004 BCSC 1603 at para. 23, and the cases cited therein.

[13] I turn to the significance of information gathered in Canada being used at the bail hearing. This issue was also considered in Graham. In that case, the requesting state, in submissions at the bail hearing, referred to Canadian obtained evidence.

[14] At para. 25 of Graham, Bennett J. observed that the person sought was released upon strict conditions, and that if he wished to challenge the information proffered by the Attorney General of Canada for the requesting state, he could have applied for a bail review on the basis that the requesting state had withdrawn evidence that it relied upon previously. That applies to the case at bar.

[15] I accept that he could have sought bail review. I note that Bezeredi did subsequently seek a variation to the bail conditions and succeeded.

[16] As noted above, Bezeredi relies to a considerable extent upon a decision in this Court, the United States of America v. Licht, a decision of Dillon J. However, I am satisfied that the impugned conduct in Canada of representatives of the requesting state in that case render Licht significantly different from the case before me. In Licht, confidential informants of the United States Drug Enforcement Agency were offering to sell large amounts of cocaine to various suspects. They were involved in targeting a person in Canada and had to confer with him in Canada because the person would not cross the border to meet with them.

[17] Given the protocols that apply in these circumstances between Canada and the United States, the American agents required the permission of the RCMP and other Canadian authorities. They obtained this permission for at least one meeting, but subsequently, the American agents entered Canada without the requisite permission. They were here without lawful immigration status. They then participated in a sting operation without the consent of the RCMP.

[18] The trial judge found that the Canadian target would not have carried through with the transaction unless he met with the American participants in Canada. She found that when the American agents came illegally into Canada, they were involved in a situation that they manipulated in order to fabricate the gathering of evidence in the United States. She also found that the alleged illegal transaction in the United States would never have occurred if the abusive conduct of the American officers in coming into Canada illegally had not occurred. The information gleaned after the illegal entry into Canada was the only way the American authorities found out about Licht’s alleged involvement.

[19] That is not the circumstance here. Bezeredi’s alleged criminal activities in the United States occurred long before the inspection order and the subsequent search.

[20] It is important, as I have said above, to emphasize that counsel for the requesting state has stated on the record unequivocally that the requesting state is not relying upon information obtained pursuant to the inspection order in Canada. Rather, it is relying upon information gained by investigators in the United States, and upon the evidence of one Mark Devereaux, an employee of Bezeredi in Canada who voluntarily came forward with information that permitted investigators to identify alleged victims.

[21] It is the intention of counsel for the requesting state to call Mr. Devereaux’s viva voce evidence. This is, of course, necessary: see United States of America v. Anekwu, 2008 BCCA 138.

[22] There is material filed in these proceedings that demonstrates the sources of information relied upon by the American authorities to identify various victims. This information is said to have come from persons telephoning in to telephone services designed for people to report possible criminal activities. But more importantly, the investigators relied extensively upon information provided by Mr. Devereaux. The material discloses that he provided information that detailed 863 entries regarding United States victims. These included customer lists of companies associated with Mr. Bezeredi. Other material relied upon includes bank records obtained in the United States.

[23] The key point is that the alleged wrongdoing resulting from obtaining information pursuant to the inspection order does not relate sufficiently to the issue that an extradition judge must determine in these proceedings. That it must if this application is to succeed is apparent from a perusal of many authorities. See for example, United States of America v. Freimuth, 2004 BCSC 154, 183 C.C.C. (3d) 296 at para. 14 where it is stated:

Unless the applicant can demonstrate that the alleged Charter breach is in relation to one of the functions that the judge is required to perform in applying the Act and that there is evidence available capable of establishing an air of reality to the alleged breach, the extradition judge should refuse to permit a Charter violation hearing to take place.

[24] And similarly, United States of America v. Ironside, 2005 BCSC 1390 at para. 8, which states:

The Attorney General responds that in applying for committal, it does not rely on any evidence obtained pursuant to the investigation order and, in particular, does not rely on any of the paragraphs in the record of the case identified above that reference evidence gathered by the RCMP in Canada.

[25] That is the situation here.

[26] For all of the above reasons, I am not persuaded that the alleged wrongful search by Canadian police officers or others pursuant to the impugned inspection order is sufficiently linked to the information relied upon by the requesting state. Rather, the requesting state relies upon material gathered in the United States, and upon the testimony of Mr. Devereaux, a voluntary witness whose actions, on the material before me, have nothing to do with the fruits of the inspection order.

[27] The application is dismissed.

“Williamson J.”

Citation:	*U.S.A. v. Bezeredi,*
	2008 BCSC 573